WUNRN
Women's Feature Service
Will the
recent amendment to the India Hindu Marriage Act, 1955,
and the Special Marriage Act, 1954, in India protect women's rights or
will an easy divorce without clear financial safeguards leave an
increasing number of women facing lengthy judicial processes for any
tangible maintenance rights? (Credit: Myke on Flickr Under Creative
Commons)
By Lavanya Regunathan Fischer and Devadatt Kamat
Separate laws have also meant that amendments to the laws of any one religious group affect only a section of the population and changes for the better also move at different speeds.
Although parties can always opt for the secular Special Marriage Act,
the religious law is often the one applied de facto. The amendments passed this
year affect only those who are governed by the Hindu Act, including Jains,
Buddhists and Sikhs, and those who marry under the secular Special Marriage
Act.
The amendments to the Acts mentioned above allow for a change in the procedure
of obtaining a divorce when the marriage has irretrievably broken down. In
addition, they try to ensure that, at the very least, maintenance arrangements
are more than a mere token.
The Amendment Act recognises that the existing legal frameworks were
inadequate. It also admits to a rather mind-boggling scale of delay in
acknowledging that the legislative recognition of irretrievable breakdown as a
clear ground for divorce was required to reconnect the law with existing social
realities. After all, the 1978 Indian Law Commission Report had spoken in
favour of these reforms almost 32 years ago. Likewise countless Supreme Court
and High Court judgments had consistently echoed the demand for these reforms
over the past three decades. Finally, the Law Commission on its own took up the
issue again and submitted the suo moto report in 2009. This seems to have
propelled the amendment through, giving the matter the necessary final push.
The delay is partly the result of misconceived notions of the
impropriety of divorce and the idea that it goes against traditional Hindu
practice, both of which are wrong. The amendment can be seen in the light of
recent progressive reform to the Hindu Succession Act and indicates that
legislators today are more willing to take a fresh approach and less willing to
make divorce the symbolic icon of Indian family values.
Leaving the question of legislative delay aside, the question remains as
to whether the amendment addresses the two main problem areas of divorce law:
The balancing of rights of all the parties involved in a divorce and the
welfare of the children after a divorce. In both these areas codified Hindu law
has had mixed results till now. From a lawyer’s point of view this is because
the courts, especially the lower courts, have not always dealt fairly with, or
shown adequate sensitivity to, the financially or educationally weaker spouse,
usually the woman. Also, the law has sometimes achieved in practise the
opposite of what it had set out to do.
Even if the court was sympathetic, as per law the application of the
irretrievable breakdown of marriage as a ground for divorce was unnecessarily
cumbersome. The method of obtaining a divorce, which was in reality based on the
principle of irretrievable breakdown – was as divorce by mutual consent. For
this type of divorce, the Act had required a six-month waiting period between
the making of the application and the courts granting the divorce, and had
required both parties to be present when such divorce was granted. The
amendments now allow for a party wishing to obtain a divorce on the basis of
the irretrievable breakdown of marriage to apply separately and obtain such a
divorce upon the court being convinced that the marriage had indeed permanently
broken down.
The prior requirements of both parties being present and the six-month
waiting period have been removed. In the past, if one of the parties decided
not to present themselves at court, it has meant lengthy, inhumane delays. It is hoped that the removal of this
requirement will speed up the process of obtaining a divorce by the party
wishing to do so, and when read with the other amendment to maintenance, might
secure for women a right to some financial security. As a safeguard against
misuse of this provision, the wife has been allowed to contest a divorce on
this ground if it would cause her grave financial hardship. The Court would
then have the right to dismiss the petition or ensure that such hardship is
eliminated. The husband has not been given such a corresponding right.
Overall, there can be no doubt that the amendment has thus rectified
huge problems and is a major step forward. Both applicants as well as the
courts no longer have to struggle with procedural unfairness or illegitimate
non-cooperation by one spouse. Similarly, the law is no longer in denial about
the everyday reality of irretrievable breakdown – mutual consent was an
inappropriate proxy, distorting the actual reasons for divorce. Above all, and
many countries should take note, is the gender sensitive framing of the new
provision, the scope for the husband to play power games at the cost of the
woman, has been reduced.
The amendment also makes it the duty of the judge to ensure the adequate
maintenance of the children in the marriage and makes explicit mention of those
with special needs – again a long overdue clarification and confirmation. The
statutory articulation of maintenance for the family is a step in the direction
of ensuring that children’s rights are made enforceable and the financial
responsibility is to be borne by all able parties. However, although the
maintenance for the children has been made ‘consistent’ with the ‘financial
capacity’ of the parties to the marriage, the level of maintenance to be
secured for the wife has been left to the discretion of the courts. This indeed
gives ground for the fear, often raised by women’s groups, that the courts are
not always sympathetic to the plight of women, or their desire for a certain
degree of financial independence.
Corruption within the judicial system, male biases, gender
insensitivity, should make us doubt whether we can afford to trust these
institutions blindly. In addition, as with all reform, legal empowerment on
paper often does not translate into actual empowerment. Illiterate women or
women ignorant of their rights would face much the same situation before an
unsympathetic judge as they faced prior to the passage of the amendment, since
knowledge of the law remains low.
In any case, even if there is an excellent litigation setting; equally
strong parties, good lawyers and a responsive judge, good maintenance
arrangements will still be difficult to arrive at, given the complexity of
Indian property rights. There is no real, well-formulated concept of marital
property. The owner of the property, even during the subsistence of the
marriage, is the person who paid and bought the property and not the spousal
unit. Secondly, many families still live in joint family arrangements, with the
various inhabitants of the property not enjoying clearly demarcated rights.
There is a whole jurisprudence that has evolved around the Hindu Undivided
Family and maintenance will have to work hard to find its way in.
So while the amendments are a step in the right direction, the loopholes
that remain perhaps call for a more coherent reading of what rights need to be
secured for all the parties involved in case a family unit breaks down. There
is still a gap between the law as it exists in the statute books and everyday
realities.
(The writers are both practising lawyers based in